SUSTENANCE AND SURVIVAL - Maintenance and Alimony in Indian Law

In a country where people do not think twice about spending money on a wedding, we are surprisingly conservative when it comes to talking about it at the time of a separation or divorce. The words “maintenance”, “settlement”, or “alimony” are all viewed as taboo words, and associated with notions of greed when it is negotiated as one of the terms of the separation. This article briefly traces the history of maintenance under Indian law, and where the law stands today after the landmark judgement of Rajnesh vs Neha in November 2020.

This article deals with maintenance and alimony in contested court proceedings, and does not deal with mutual consent divorces. For an introduction to these terms, it is recommended that the reader goes through this article[1]. As of the date of publication, India does not recognise marriage equality and this article only deals with heterosexual unions.

The Law Today

Laws surrounding marriage and divorce in India largely depend upon the religion of the parties. There is the Hindu Marriage Act, the Christian Marriage Act (and the Indian Divorce Act that governs Christian marriages), the Parsi Marriage and Divorce Act, and Muslim personal laws that are not yet codified as a separate legislation. The Special Marriage Act governs marriages between two people who profess different faiths, and you can read more about that here[2]. These laws also have separate provisions that deal with maintenance. These will be referred to as Personal Laws going forward.

Today, maintenance can be sought for by the woman for herself and the children (if any) under the following laws – the Code of Criminal Procedure, the Protection of Women from Domestic Violence Act, the Hindu Adoption and Maintenance Act, and other Personal Laws.

Maintenance under the Code of Criminal Procedure stems from neglect as an offence. Section 125 of the present Code of Criminal Procedure retains certain elements from Section 488 of the earlier Code of Criminal Procedure, 1898. Under Section 125, the wife or children or parents of the person who has neglected to maintain them can file a claim for maintenance. They can also file for interim-maintenance that will be paid to them until the case is decided. Interim maintenance is quite literal – it means a sum that will be paid on a monthly basis until the case is decided.

Under Personal Laws, alimony can be sought for along with any other matrimonial relief like divorce. Petitions for interim maintenance can also be filed. Though the Hindu Marriage Act states that either the husband or wife can seek permanent alimony, men have tried claiming for maintenance and the same has not been always been successful.

The Protection of Women from Domestic Violence Act, 2005 (also called the “DV Act”) is another legislation where a person in a domestic relationship (it can also include live-in relationships that are in the nature of marriage) can file for maintenance as well as for compensation, if they have faced domestic violence. Maintenance will be paid on a monthly basis or as a one-time payment as decided by the Court. Compensation will be the sum determined by count, taking into account their physical and mental suffering and emotional distress, if the fact of domestic violence has been proven. However, the law today takes a conservative approach to what constitutes a domestic relationship. The Supreme Court has held that a live-in relationship cannot mean a one-night stand, or when two people spend only weekends together. The Court has held that the DV Act uses the term “in the nature of marriage” to define a domestic relationship, and the phrase “live-in relationship” is not used. In the 2010 Supreme Court case of D.Velusamy vs D.Patchaiammal, the claim of Patchiammal was that she was married to Velusamy since 1986. Velusamy denied it, and claimed he was already married to another woman in 1980 and also had a child with her. While empathising with Patchiammal, the Supreme Court held that she could not claim maintenance under Section 125 as she was not legally married to him, and thus could not be his wife. The Supreme Court also held that she could not claim for maintenance under the DV Act as their relationship was not in the nature of marriage, as Velusamy was already married to another woman, and that in order to have a “relationship in the nature of marriage”, the parties must be unmarried, or otherwise capable of entering into a marriage.

This interpretation greatly dilutes the DV Act, and in effect prevents women who may not know the truth about their partner’s marital history from the protection that the Act has to offer.

Evolution of the Law

Since the laws surrounding marriage and separation in India all have a religious identity, there a lack of certainty about Muslim women claiming for maintenance. The Supreme Court in the landmark judgement of Mohd. Ahmad Khan v. Shah Bano Begum in 1985 held that Muslim women are entitled to maintenance under Section 125 of the Code of Criminal Procedure, as the Code of Criminal Procedure was applicable to everybody, irrespective of religion.

After this judgement and in an attempt to dilute the ruling of the Supreme Court of India, the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act 1986 which stated that a Muslim woman is entitled to maintenance from her husband within the iddat period (this is a period of chastity followed for 3 months by Muslim women after death of their husband or separation, in order to ensure there is no doubt about paternity of a child, should one be consummated during the marriage or lifetime of the husband). However, the Supreme Court in subsequent judgements has held that a Muslim woman is entitled to maintenance even after the iddat period.

Quantum of Maintenance

When maintenance petitions were filed, the Courts would examine submissions of both parties, and record their earnings. If any party is not disclosing the entire extent of their assets or liabilities, the parties could either file petitions for the same to be produced in court, or it will have to be established through trial.

The judgements post the Shah Banoo case also started the discussion on how much money can a court award as maintenance. It was often argued by the husband that the wife’s demands are exorbitant, and that maintenance should cover enough for basic necessities and survival.

In the case of Shamima Farooqui vs Shahid Khan in 2015, the Supreme Court has held that sustenance does not mean, and can never mean a mere survival. The Court went on to hold that a woman constrained to leave the matrimonial home is entitled to lead life in a similar manner that she would have lived in the house of the husband. This is an important element in calculating maintenance – the quality of life that the person claiming for maintenance would have enjoyed, had the separation not occurred. However, the litigant will also have to prove that the reason for leaving the matrimonial home is well-founded, and with reason.

In the case of Manish Jain vs Akanksha Jain in 2017, one of the contentions raised was that the wife was employed and working, and therefore not entitled to maintenance. However, the Supreme Court held that maintenance cannot be denied just because the wife was educated and able to support herself. The Supreme Court also held that the wife's parent's financial condition or status is not an excuse for denying maintenance. In subsequent judgements, the Supreme Court has held that the trial court has to consider whether the wife's income is sufficient to maintain herself (and their children) in accordance with the lifestyle of the husband.

Naina is married to Bunny. Bunny is a CEO in a company, and is earning well. Naina’s parents are well to do, but Naina herself has not worked since the children were born in order to take care of them. Their children are studying in a reputed private school. Naina and is forced to leave the matrimonial home and take the children with her as Bunny is having an affair with somebody else. Naina cannot be asked to return to the matrimonial home as she has good reason to leave it, in light of Bunny’s infidelity. Bunny also refuses to pay maintenance, and claims that Naina’s parents are rich and can take care of her and the children. The court will not accept this contention. The court will also not accept that Bunny pays just enough for the children and Naina to survive. Naina has a right to live in a manner that she would have, had she continued to live with Bunny. This includes Bunny providing maintenance which also covers the school fees of the children in the private school they are attending. The fact that Naina is qualified and was working in a high paying joy prior to the children being born will also not bar her from receiving maintenance in this case.

While there is no fixed formula to determine maintenance, the Supreme Court in Kalyan Dey Chowdhury vs Rita Dey Chowdhury in 2017 upheld an order of the Calcutta High Court which held that 25% of the husband's net salary will be just and proper to be awarded as maintenance to the wife. This, however, will depend upon the facts and circumstances of the case. The nature of the wife’s job, any health conditions of the spouse or the children, the fact whether they are residing in a rented house, are other facts taken into calculating maintenance.

In November, 2020, the Supreme Court of India in the case of Rajnesh vs Neha held that the person seeking maintenance is not barred from claiming maintenance under different laws. Sufficient disclosure about petitions that have already filed have to be made.

The Supreme Court also made it mandatory to file an affidavit of assets and liabilities, which includes bank statements of all existing accounts for three years prior to filing the petition, income tax returns for the years when the parties got married, Form 16 certificates to disclose salary,? when the separation took place, and when the petition was filed, disclosure of all assets and liabilities including shares, fixed deposits, disclosure of dependants and expenses, disclosure of sale/purchase/ any other kind of transfer of immovable property, disclosure of gold jewels that are in the possession of the parties, and tax and salary related documents for NRIs. The affidavit is also detailed, and outlines educational expenses for the child, expenses for the dependants, their sources of income, and loans and liabilities of the parties.

Separate format of affidavits for people pursuing farming and agrarian activities have also been given in this judgement. This requirement of filing the affidavit of assets and liabilities is not necessary if the parties fall below the poverty line, or belong to the economically weak sections.

In case any party does not file these documents, the Courts will draw an adverse inference, which is a negative finding on the basis of non-submission of the documents.

Naina has filed for maintenance, and has stated that Bunny is earning Rs. 10,00,000 per month. Bunny denies it and states he is earning Rs. 50,000 per month. Bunny also does not file his bank statements, IT returns, or salary slips. The Courts will draw an adverse inference since Bunny is not disclosing the required documents, and that his claim is not necessarily true. On the other hand, if Bunny claims that Naina is earning Rs. 5,00,000/- as rental income from properties she owns, and Naina does not submit her bank statements, IT returns, or property documents, the Court will draw an adverse inference against Naina in this case.

The litigants can also ask for the documents to be produced in accordance with the Code of Civil Procedure in cases filed for maintenance under Personal Laws and the DV Act. The Courts also have powers under the Indian Evidence Act to ask questions or demand production of documents it deems material to ascertain the truth.

One drawback of this disclosure system is that it does not deal with transactions made in cash, and assumes that all litigants have a bank account and file tax returns which meticulously record cash flow. It would have been a valuable addition if questions such as employment of domestic staff, domestic and international vacation, etc were included in the affidavit of assets and liabilities as these are better indicators of wealth and prosperity in India. Since trial courts also use vernacular language, it will also be helpful if translations of this judgement in the different national languages and other languages are made, and circulated to the trial judiciary. This will ensure that there is no misinterpretation of the judgement, and it is followed in a standard manner.

Duration of maintenance

Maintenance is usually for the lifetime of the wife even after an order of divorce is passed, or until she gets married again. Maintenance for minor children is to be paid until they attain majority. In case the child has any developmental, mental, or physical disability, maintenance can be payable for the child even after the child attains the age of 18. If circumstances for either party changes, they can approach the same court seeking a modification in the maintenance amount.

Maintenance is calculated from the date on which the party files the petition for maintenance, and it is not to be calculated from the date the Courts pass an order of maintenance. This is crucial as a petition for interim maintenance or maintenance takes time to be adjudicated.

Naina filed a petition seeking maintenance against Bunny on January 2, 2024. She also filed for interim maintenance, hoping that the Court will order maintenance in 60 days, which is the time limit specified in the Code of Civil Procedure. However, after she filed a petition, notice of the same had to be served on Bunny. Since he shuttles between India and Canada, this took more than 3 months. Finally, when Bunny appeared in Court, the case was referred to mandatory counselling. This took another month. Bunny was then given time to file his counter and his affidavit of assets and liabilities. This took 2 months. Finally, Naina’s lawyer was able to advance arguments, Bunny’s lawyers completed arguments the following month. Interim maintenance was ordered on July 18, 2024. The case is now pending for trial in the maintenance case to commence. Bunny has indicated that he will be taking the order on appeal to the High Court.

After this, the trial in the case will commence, the parties will be subjected to cross examination, witnesses can be called, arguments will be advanced, and then orders will be passed. The idea behind calculating maintenance from the date of filing the petition is to ensure that the litigant does not suffer because of delay caused by the other party, or any delay inevitable in the system.

If the order of maintenance is not being complied with, the litigant can file for execution of the maintenance order in the trial courts, and can seek attachment of the salary of the spouse, or sale of one of their assets. Non-payment of maintenance can also result in imprisonment.

In November 2023, the Supreme Court expressed its dissatisfaction that some maintenance cases in the trial courts are being disposed without the parties filing the affidavit of assets and liabilities, and it asked for the circulation of the Rajnesh vs Neha judgement to all judicial officers through the High Courts, and the National and State Judicial Academies.

Conclusion

In most cases in India, a majority of the wedding expenses are borne by the bride’s family at the time of the wedding. This expense is significant, and many families incur liabilities at the end of the celebrations. Thus, matrimonial life in India begins on an unequal financial footing. While divorce and separation are not the end of the world, it does mark the end of significant familial support, pooling of resources, and sharing expenses. ?It is important to start talking about maintenance and alimony[3] in terms of sustenance and building a future where the safety net of marriage is absent.

[1] https://www.thenewsminute.com/news/d-word-what-you-need-know-about-divorce-lawyer-writes-152992

[2] https://www.thenewsminute.com/the-next-wave/what-would-happen-to-mani-ratnams-lead-couple-in-bombay-under-the-sma

[3] https://www.thenewsminute.com/money/divorced-mom-rupee-rani-tells-you-how-you-can-save-your-child-s-future-72085